House Oversight Committee Releases Lois Lerner Report

11 Mar 2014

Darrell Issa’s Committee on Oversight and Government Reform issued a staff report Tuesday aimed squarely at Lois Lerner and her involvement in the IRS targeting of conservative groups. The report suggests Lerner misled Congress in four instances and attempted to downplay the inappropriate targeting after it came to light.

The report says Lerner was concerned about the political implications of allowing 501(c)(4) groups to spend money on election related activity in the wake of the Citizens United decision. The Oversight Committee report concludes that Lerner was involved in three separate efforts to curb such spending. From the report’s conclusion:

Evidence indicates Lerner and her Exempt Organizations unit took a three pronged approach to “do something about it” to “fix the problem” of nonprofit political speech:

1) Scrutiny of new applicants for tax – exempt status (which began as Tea Party targeting);
2) Plans to scrutinize organizations, like those supported by the “Koch Brothers,” that were already acting as 501(c)(4) organizations; and
3)”[O]ff plan” efforts to write new rules cracking down on political activity to replace those that had been in place since 1959.

The sense conveyed in the report is that Lerner was concerned IRS activity might appear to be “per se political” (as she warned in one email) even as she helped slow walk any movement toward approval on cases which were, overwhelmingly, conservative groups.

In the summer of 2011, Lerner learned about the criteria used to gather the Tea Party cases, which included “[s]tatements in the case file [that] criticize how the country is being run.” As a result she adjusted the criteria for selection so it would not appear to be focused on right-leaning groups. However, while her adjusting of the criteria represents an admission that the prior criteria had been problematic, she apparently made no effort to release the cases selected under that criteria. Tea Party cases remained gummed up in the multi-tier review process she had recommended.

The same briefing prepared for Lerner noted that one of the groups under scrutiny “stated it will conduct advocacy and political campaign intervention, but political campaign intervention will account for 20% or less of activities.” That’s far below the 49% threshold set by law. The briefing for Lerner added “A proposed favorable letter has been sent to Counsel for review.” But the report notes that as of June 2013, a full two years later, the application was still pending.

And there is no doubt Lerner was aware who was being scrutinized. In July 2012, Lerner was notified by email that of the 199 501(c)(4) cases which had been set aside “approximately 3/4 appear to be conservative leaning while fewer than 10 appear to be liberal/progressive leaning groups…”

Earlier in 2012, Lerner was asked a series of questions by Committee staff. The report lays out four instances where she appears to have misled them in her answers. For instance, Lerner was asked whether criteria for examining 501(c)(4) cases had been changed at any time. She said no. But, as noted above, she had changed the criteria used to identify cases for scrutiny herself in 2011.

In response to another Committee question about letters sent to conservative groups demanding donor lists, Lerner replied this had been done “in the ordinary course of the application process.” Later, in 2013, the Committee learned from the IRS Commissioner’s Chief of Staff, Nikole Flax, that she was unable to find another instance in the IRS’ history where such a request had been made.

Finally, the report is critical of Lerner’s attempt to downplay the import of the TIGTA findings by arranging a planted question to which Lerner could give a scripted answer claiming the targeting had been a mistake not “a political vendetta.” Internally, Lerner wrote an email saying of the forthcoming report “It is what it is . . . we will get dinged.” But a few months later, just before the report was released, she was exploring her retirement options.

Lerner has refused to testify about the matter, including last week when she asserted the 5th amendment for the second time. The Committee report devotes one section to the claim that Lerner waived her right to assert the 5th when she offered a defense of herself and verified a signature on a document before doing so the first time. The report closes with a suggestion that “Americans who faced mistreatment at the hands of the IRS, deserve the full documented truth that both Lois Lerner and the IRS have withheld from them.”